At a Congressional Hearing last April, Representative Zoe Lofgren (D-Silicon Valley) grilled Register of Copyrights Maria Pallante over a statement she had made during an interview published in the ABA’s Landslide magazine. Lofgren took issue especially with Pallante’s remark during the interview that “Copyright is for the author first and the nation second.” At one point during the hearing, Lofgren asked Pallante about the remark:

Now, this comment attracted quite a bit of attention among some people, especially my constituents in Silicon Valley, and it seems to me when you look at the Constitution, which empowers congress to grant exclusive rights in creative works in order, and i quote, “to promote the progress of science and the useful arts.” It seems to me that the Constitution is very clear that copyright does not exist inherently for the author but for the benefit for society at large.

Now, I’m concerned when any public official, especially one in charge of regulation of a particular industry or area of law seems to favor particular stakeholders in that very industry. We’d be alarmed, for example, if the chairman of the FCC said the Telecommunications Act was for the telecom companies first and the nation second, and it’s not clear to me how your statement, if it was accurately reported, is any different.

This struck me at the time as a bizarre attempt to create controversy over a relatively benign statement. To set the record straight: Lofgren was wrong, and Pallante was right. Lofgren’s attack is full of misguided statements — not least of which is the notion that the Register of Copyrights is “in charge of regulation of a particular industry or area of law” 1The US Copyright Office has little direct role in regulating copyright law. The bulk of its work is in administering the registration of copyrighted works. The only area it exercises substantive rulemaking authority is in the triennial DMCA anticircumvention exemption proceedings, a relatively minor aspect of copyright law in the grand scheme of things; see Joseph Liu, Regulatory Copyright, 83 North Carolina Law Review 88, 148 (2004). — but most of all was her misconstruction of the “public interest” in copyright.

Saying that “copyright is for the author first” does not ignore the public interest but rather recognizes that the public’s interest is served when authors are protected. Lofgren’s remarks seem oblivious to the public interest in securing exclusive rights to creators and instead substitute a vague, chameleon-like conception — an “untethered public interest”, one that more often than not provides cover for the private interests of economic users of copyrighted works.

Far from controversial, the public’s interest in encouraging the creation of expressive works by protecting creators’ rights — which Pallante was alluding to in her statement — has been recognized since the earliest days of copyright law. James Madison, the primary architect of the Constitution’s Copyright Clause, said of it in the Federalist Papers, “The public good fully coincides… with the claims of individuals.” Pallante’s remarks, as she notes herself in her response to Lofgren, are primarily a restatement of what the Supreme Court said in Twentieth Century Music Corp. v. Aiken:

The immediate effect of our copyright law is to secure a fair return for an “author’s” creative labor. But the ultimate aim is, by this incentive, to stimulate artistic creativity for the general public good.

On another occasion, the Supreme Court noted

The economic philosophy behind the clause empowering Congress to grant patents and copyrights is the conviction that encouragement of individual effort by personal gain is the best way to advance public welfare through the talents of authors and inventors in “Science and useful Arts.” Sacrificial days devoted to such creative activities deserve rewards commensurate with the services rendered. 2Mazer v. Stein, 347 US 201, 219 (1954).

To put it bluntly: society benefits when creators get paid. The private right that copyright law secures is what advances the public’s interest in new expressive rights. And the importance of this private right shouldn’t be minimized, as the Ninth Circuit noted in 1981:

Despite what is said in some of the authorities that the author’s interest in securing an economic reward for his labors is “a secondary consideration,” it is clear that the real purpose of the copyright scheme is to encourage works of the intellect, and that this purpose is to be achieved by reliance on the economic incentives granted to authors and inventors by the copyright scheme. This scheme relies on the author to promote the progress of science by permitting him to control the cost of and access to his novelty. 3Universal City Studios v. Sony Corp, 659 F.2d 963 (9th Cir. 1981).

Other courts have reiterated the public’s benefit from copyright law, especially when considering preliminary injunctions (since the public interest must be considered when deciding to issue a preliminary injunction). Just a few examples:

“There is a strong public interest in the copyright system’s function of motivating individuals to make available their creative works and increase the store of public knowledge.” 4ABC v Aereo, No. 12-Civ-1540(AJN), order denying preliminary injunction (SDNY, July 11, 2012).

“Google argues that the “value of facilitating and improving access to information on the Internet . . . counsels against an injunction here.” This point has some merit. However, the public interest is also served when the rights of copyright holders are protected against acts likely constituting infringement.” 6Perfect 10 v Google, 416 F.Supp.2d 828, 859 (2006).

“The object of copyright law is to promote the store of knowledge available to the public. But to the extent it accomplishes this end by providing individuals a financial incentive to contribute to the store of knowledge, the public’s interest may well be already accounted for by the plaintiff’s interest.” 7Salinger v Colting, 607 F.3d 68, 82 (2nd Cir. 2010).

“One of the great fallacies of modern copyright jurisprudence”

The notion of an “untethered public interest”, as I referred to it above, and its ascendancy over the private right has seeped into the copyright skeptic zeitgeist (Lofgren is certainly not alone in her views) However, this has partly been the result of a mistake.

In the 1932 Supreme Court case Fox Film Corp. v. Doyal, a company that licensed films challenged the collection of state taxes on the gross receipts of royalties from its licenses. 8286 US 123. The company argued that its copyrights were “instrumentalities” of the federal government and, thus, immune from state taxation.

The Supreme Court rejected this argument, saying, “the mere fact that a copyright is property derived from a grant by the United States is insufficient to support the claim of exemption.” To be exempt from state taxation, the government must reserve some sort of controlling interest in a grant or privilege. But here, as the Court notes earlier, “The sole interest of the United States and the primary object in conferring the monopoly lie in the general benefits derived by the public from the labors of authors.” In other words, the government only has a policy interest, not a property interest; “After the copyright has been granted,” said the Court, “the Government has no interest in any action under it save the general one that its laws shall be obeyed.”

But then a curious thing happened. This language, which only served to distinguish a pecuniary interest from a general interest, transmogrified into a declaration of the interest itself.

In 1948, the Supreme Court was faced with the question of whether the practice of “block-booking” — “licensing, or offering for license, one feature film or group of features on the condition that the exhibitor will also license another feature or group of features released by the distributors during a given period” — violated the Sherman Act. 9United States v. Paramount Pictures, 334 US 131. In holding that it did, the Supreme Court said, “The copyright law, like the patent statutes, makes reward to the owner a secondary consideration.”

As support, it then stated, “In Fox Film Corp. v. Doyal, Chief Justice Hughes spoke as follows respecting the copyright monopoly granted by Congress, ‘The sole interest of the United States and the primary object in conferring the monopoly lie in the general benefits derived by the public from the labors of authors.'”

This case, in turn, was cited by the Supreme Court in the 1984 Betamax case to support the idea that “The monopoly privileges that Congress may authorize are neither unlimited nor primarily designed to provide a special private benefit.” 10Sony Corp. v. Universal City Studios, 464 US 417, 429 (1984). And so, the eisegesis was complete; scholars today continue to rely on this quote, taken out of context, to support the supremacy of an untethered public interest over the private right. 11See, for example, Jessica Litman, Readers’ Copyright, 58 Journal of the Copyright Society of the US 325 (2011); Edward Lee, Technological Fair Use, 83 Southern California Law Review 797, 819 (2010); William Patry, Moral Panics and the Copyright Wars, pg. 123 (Oxford Univ. Press 2009); Pamela Samuelson, Unbundling Fair Uses, 77 Fordham Law Review 2537, 2580-81 (2009); Rebecca Tushnet, Legal Fictions: Copyright, Fan Fiction, and a New Common Law, 17 Loyola L.A. Entertainment Law Journal 651 (1997).

It would be similarly fallacious to say that in a real estate transaction, the money paid to the seller is only a secondary consideration, with the primary value of the transaction consisting of the conveyance of the parcel to the buyer. Both the money and the land in such a transaction are consideration; neither is more important to the public, although at the time of the transaction the money is more important to the seller and the land is more important to the buyer. The value to society consists merely in the existence of a market for the land so that property may be obtained by those who are likely to put it to better use. Likewise, for intellectual property; the value to society consists in the existence of a market for the authors’ writings. The money paid to the author is by no means secondary. Rather, it is the unavoidable result of the creation of a market because a market cannot exist without the promise of reward to owners of property who choose to place that property on the market.

Echos from 1909

Another element that feeds into this misconstruction of copyright and the public interest is a statement made over a century ago.

During the drafting of the 1909 Copyright Act, New Hampshire Representative Frank Currier submitted a report from the Committee on Patents, which at one point stated, “Not primarily for the benefit of the author, but primarily for the benefit of the public, such rights are given.” To hear some put it, this lone statement plucked from the middle of a Committee Report represents the be-all and end-all of copyright justification in the US, an explicit and certain rejection of any consideration due the private right itself.

But immediately following, Currier distinguishes exactly what he means by the “benefit of the public,” and it sounds far more like the view expressed by Pallante:

Not that any particular class of citizens, however worthy, may benefit, but because the policy is believed to be for the benefit of the great body of people, in that it will stimulate writing and invention, to give some bonus to authors and inventors.

In enacting a copyright law Congress must consider, as has been already stated, two questions: First, how much will the legislation stimulate the producer and so benefit the public; and, second, how much will the monopoly granted be detrimental to the public. The granting of such exclusive rights, under the proper terms and conditions, confers a benefit upon the public that outweighs the evils of the temporary monopoly. [Emphasis added.]

It’s also worth noting how Currier’s statement comports with what the 1909 Copyright Act actually did to further this public benefit:

The term of protection for copyright was extended by 14 years.

Copyright protection was expanded to include mechanical reproductions (interestingly, Currier said of this provision, “The main object to be desired in expanding copyright protection accorded to music has been to give to the composer an adequate return for the value of his composition”).

New remedies against infringers were added, including impoundment during actions and destruction of infringing copies and plates.

Criminal penalties were expanded to include willful infringment of any right in any subject matter (formerly, only the unauthorized public performance of dramatic works and musical compositions carried criminal penalties).

As the Supreme Court noted in 1939, the 1909 Copyright Act “introduced many changes and was intended definitely to grant valuable, enforceable rights to authors, publishers, etc. … ‘to afford greater encouragement to the production of literary works of lasting benefit to the world.'” 13Washingtonian Co. v. Pearson, 306 US 30, 36. That is, the public interest was served by first securing the exclusive rights of creators.

Finally, Currier’s statement regarding the public interest in copyright law is far from an unequivocal proclamation by Congress. In 1975, former Register of Copyrights Barbara Ringer testified in front of Congress during a hearing on the revisions that would become the Copyright Act of 1976. She disagreed that, “Not primarily for the benefit of the author, but primarily for the benefit of the public, such rights are given.”

This sounds great and for a long time, I felt that this was probably correct. But, the more I have looked upon the status of authors in this country and the fact that the public interest is badly served when authors are badly served, I have felt that too often the ‘public interest’ has been identified with economic users rather than with authors.

In recent years, partly as a result of this whole revision exercise, I have been trying to gage individual issues in terms of their impact upon creativity and authorship, which I consider the ultimate public interest.

The Constitution speaks of the desirability of promoting the progress of science and useful arts, science in the broad sense of learning or knowledge, by offering protection for limited times to authors and inventors.

It seems to me that it is this protection, the exclusive rights that are supposed to be granted to authors, that is the ultimate public interest that the Constitution and its drafters were thinking about. I do not think that this has ever been fully or even partly realized in any copyright law we have had in our entire history.

Copyright, in other words, is for the author first and the nation second.

The US Copyright Office has little direct role in regulating copyright law. The bulk of its work is in administering the registration of copyrighted works. The only area it exercises substantive rulemaking authority is in the triennial DMCA anticircumvention exemption proceedings, a relatively minor aspect of copyright law in the grand scheme of things; see Joseph Liu, Regulatory Copyright, 83 North Carolina Law Review 88, 148 (2004).

Sorry to come to this so late such that my comments will probably be missed. However, you’ve provided a convincing argument is support of Lofgren’s remark. All the evidence you’ve mustered consistently concludes that the public interest is served by granting exclusivity to creators, thus making the point that the public interest comes first in copyright law.

Not the most popular view, yet this is what makes it even more pleasurable to read an article with which I completely agree.

I’ve been saying two things for a long time:

1. Copyright is not about getting paid, it’s about control and respect.

2. The idea of balancing the interests of users and copyright owners makes just about as much sense as balancing the interests of rapists and their victims. It’s one or the other.

Just because the public may somehow end up benefiting from the intellectual property regime is NOT the reason why we should have laws that protect intellectual property. We should protect copyright because it’s the right thing to do to arm creators with a tool that would allow them to offer their works to the market without getting ripped off.

About

Copyhype provides news and info on current developments relating to copyright law, the media industries, and the digital economy. It cuts through the hype to bring reasoned discussion aimed at both legal and nonlegal audiences.

Terry Hart is currently VP Legal Policy and Copyright Counsel at the Copyright Alliance. Any opinions expressed on this site remain his own and not necessarily those of his present or any past employers.